Port Macquarie - Hastings Council v Lawlor Services Pty Limited, Port Macquarie - Hastings Council v Petro

Evidence Act 1995 s 79 LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 6 r 2 Supreme Court Rules 1970 Pt 75 r 3J Uniform Civil Procedure Rules 2005

Australian Securities and Investments Commission v Rich (2005) 190 FLR 242; Australian Securities and Investments Commission v Rich (2005) 218 ALR 764; Commonwealth Development Bank of Australia Pty Limited & Anor v Cassegrain [2002] NSWSC 980; CASES CITED: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Norvill v Stokes [2006] NSWLEC 622; Portal v Bodsworth [2005] NSWSC 1228; R v Li (2003) 139 A Crim R 281; United Rural Enterprises Pty Ltd v Lopman Pty Ltd & Ors (2003) NSWSC 870

PROSECUTOR Mr I Hemmings SOLICITOR Donovan Oates Hannaford FIRST DEFENDANT LEGAL REPRESENTATIVES: Mr J Maston SOLICITOR Falvey Associates SECOND DEFENDANT Mr T Hale SC SOLICITOR Falvey Associates

JUDGMENT: LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

50031 of 2006, 50006 of 2007 Port Macquarie - Hastings Council v Lawlor Services Pty Limited, Port Macquarie - Hastings Council v Petro (No 3)

EX TEMPORE JUDGMENT 1 Her Honour: This is an ex tempore judgment dealing with the question of whether the Prosecutor can rely on the opinion of a witness on the basis that he is an expert witness under s 79 of the Evidence Act 1995. Section 79 provides an exception to the opinion rule in s 76. Mr Hanlon is the Prosecutor's Tree Compliance Officer with responsibility for this prosecution. Part of an affidavit sworn by him on September 2006 has been read in the proceedings. An affidavit sworn 30 May 2007 after the hearing commenced on 28 May 2007 was filed in Court and read which states that he has read and agrees to be bound by the Expert Witness Code of Conduct (the Code). The Prosecutor wishes to adduce oral evidence from him as an expert witness today in relation to the unread parts of his affidavit. There are three areas of expert opinion sought to be adduced in relation to the species of trees, the lengths of trees in windrows and the appearance of green foliage on some trees. Only the last area is of concern to the Defendants.

2 Part 75 of the Supreme Court Rules 1970 was adopted by the Land and Environment Court Rules 1996 Pt 6 r 2.

3 Rule 3J in Pt 75 of the Supreme Court Rules states that: (1) This rule and rule 3K apply to all criminal proceedings in the Court (including those specified in the Third Schedule to the Act). (2) For the purposes of this rule and rule 3K: "expert witness" means an expert engaged for the purpose of: (a) providing a report as to his or her opinion for use as evidence in proceedings or proposed proceedings, or (b) giving opinion evidence in proceedings or proposed proceedings. "the code" means the expert witness code of conduct in Schedule 7 to the Uniform Civil Procedure Rules 2005 . (3) Unless the Court otherwise orders: (a) at or as soon as practicable after the engagement of an expert as a witness, whether to give oral evidence or to provide a report for use as evidence, the person engaging the expert must provide the expert with a copy of the code, and (b) unless an expert witness's report contains an acknowledgment by the expert witness that he or she has read the code and agrees to be bound by it:

(i) service of the report by the party who engaged the expert witness is not valid service for the purposes of the rules or of any order or practice note, and (ii) the report is not to be admitted into evidence, and (c) oral evidence is not to be received from an expert witness unless:

(i) he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code and agrees to be bound by it, and (ii) a copy of the acknowledgment has been served on all parties affected by the evidence. … (5) This rule does not apply to an expert engaged before this rule commences.

4 A key issue which arose only at the end of submissions in reply and warrants greater attention than I can give it in this ex tempore judgement is whether Mr Hanlon can be an expert witness engaged for the purposes of this prosecution, given his salaried position at the Council and that he is the person responsible for pursuing the prosecution. If he is not engaged, meaning contracted, as an expert, on one view r 3J does not apply to him. The issue of whether his opinion is admissible would then arise under s 79 of the Evidence Act only, a broadly similar position to that in R v Li (2003) 139 A Crim R 281 which concerned admissibility of expert evidence from police officers. Given that employees of government bodies at local, state and federal level are called on regularly to give expert evidence in criminal matters in several jurisdictions it would be desirable before finally ruling on this issue that I had further argument before concluding that such witnesses are not caught by r 3J. It is desirable that any person giving expert witness evidence in criminal proceedings is informed of his or her obligations to the Court in doing so, hence r 3J.

5 In the interests of continuing the part-heard matter before me I will also consider the issues raised to which most of the argument was directed and for that purpose will assume that Mr Hanlon is able to be engaged as an expert witness for the purposes of this prosecution.

6 At issue is whether the admissibility of oral evidence from him is prevented unless I make an "otherwise" order under r 3J(3) because the Defendants argue there is a failure to comply with r 3J(3)(a) and (c). It is clear that r 3J(3)(a) was not complied with. The Defendant argued that the failure to comply means the evidence is not admissible and an "otherwise" order should not be made in the circumstances of this case.

7 The Prosecutor argued that compliance with the Code has not been construed as relevant to admissibility and relied on Australian Securities and Investments Commission v Rich (2005) 190 FLR 242 at first instance, a decision of Austin J also referred to in the notes to r 31.23 of the Uniform Civil Procedure Rules 2005 (see p 7835): The expert witness code provisions are not intended to operate directly as rules of admissibility. Their primary intention is to operate as a code of conduct designed to improve the quality of expert evidence: Australian Securities and Investments Commission v Rich ( 2005) 190 FLR 242; 53 ACSR 110; [2005] NSWSC 149 …

While that decision was appealed and overturned ( Australian Securities and Investments Commission v Rich (2005) 218 ALR 764) it does not appear to have been overturned in relation to this part of his Honour's reasoning.

8 The Prosecutor also argued that the apprehension of bias was not a reason not to admit evidence of an expert not prepared in accordance with the requirements of Pt 75.

Finding 9 S 79 of the Evidence Act states: 79 Exception: opinions based on specialised knowledge If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. Odgers Uniform Evidence Law 7th edition states at page 310 in relation to the interaction between the Evidence Act and the Court Rules that: Compliance with court rules will make it easier for the opinion evidence to be admitted. Non compliance with the rules will also have an effect on the application of the discretion to exclude evidence in s 135 eg the expert in expressing an opinion is infected by the failure to understand his responsibilities (United Rural Enterprises).

10 The parties have referred me to a number of ex tempore single judge decisions in several courts which have taken an approach different to that of Austin J in ASIC v Rich, for example United Rural Enterprises Pty Ltd v Lopman Pty Ltd & Ors (2003) NSWSC 870 and Commonwealth Development Bank of Australia Pty Limited & Anor v Cassegrain [2002] NSWSC 980 which predate ASIC v Rich (2005).

11 There appears to be little consideration of the issues raised here in the context of criminal proceedings. One matter referred to was Norvill v Stokes [2006] NSWLEC 622 before Jagot J. Initially the defendants objected to affidavits of the prosecutor's witnesses, officers of the Department of Natural Resources, because of their failure to comply with Pt 75 r 3J. That objection was subsequently withdrawn and the affidavits read. Her Honour undertook a detailed analysis of the evidence in order to determine how much weight she should give to it and in that analysis included consideration of the failure to comply with Pt 75. Noting that Pt 75 was not complied with, Her Honour nevertheless considered the evidence.

12 I consider I should apply Austin J in ASIC v Rich as set out above so that failure to comply with r 3J does not lead automatically to inadmissibility of evidence under s 76 the Evidence Act.

13 I nevertheless consider I should determine whether an "otherwise" order is necessary given that the rules of this Court apply Pt 75 of the Supreme Court Rules in criminal proceedings. That is, has there been non compliance with r 3J(3) which requires that an "otherwise" order must be made in order for Mr Hanlon to give evidence. The paragraphs are cumulative in that section and there is a failure to comply with r 3J(3)(a). This means that the affidavit sworn in September 2006 was not prepared by Mr Hanlon in the knowledge of the Code in Sch K. That applies to parts of the affidavit at present unread but which are intended to be the basis of his oral evidence. That circumstance is sought to be cured by his affidavit of 30 May 2007 which does meet the requirements of r 3J(3)(c) in relation to the giving of his oral evidence. I consider there is a failure to comply with r 3J(3)(a) and that an "otherwise" order has to be considered. In exercising my discretion whether to make such an order I must consider s 137 of the Evidence Act which states:

137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 14 In considering whether there is unfairness to the Defendants as identified by s 137, which relates specifically to criminal proceedings, I do not consider there is such unfairly prejudicial material likely to be adduced in oral evidence that I should not make an "otherwise" order under r 3J. 15 The analysis of Campbell J in United Rural Enterprises at [15] as to the policy consideration underpinning the section equivalent to r 3J in the Supreme Court Rules where he was considering s 135 of the Evidence Act, is useful to consider here in arriving at my conclusion. The circumstances of this case are unlike those in United Rural Enterprises relied on by the Defendants and the result in that case is therefore of no assistance to me in resolving the issue here.

16 In an ex tempore judgment Einstein J in Cassegrain suggests that a strict application of the Code is important. His Honour's reasoning also incorporates consideration of Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. His reasoning for why a strict application is necessary is set out at [11]. As already noted that decision predates Austin J in ASIC V Rich which I have applied, I also take into account Portal v Bodsworth [2005] NSWSC 1228 per Brereton J at [5] where his Honour distinguishes Cassegrain.

17 I am mindful that these are criminal proceedings and a strict application of Pt 75 is generally warranted. However, that must always be considered in the particular circumstances of the case. Given the nature of the expert evidence sought to be adduced from Mr Hanlon and the history of the matter leading up to the prosecution, with the substance of the evidence made known in an affidavit served on the Defendants last year, I consider I should make an "otherwise" order to enable Mr Hanlon to give oral evidence as an expert witness.

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